Is More Collective Bargaining Transparency Wise? – Part 2

Recently, I wrote about Pennsylvania Senate Bill 645, which would create the “Public Employer Collective Bargaining Transparency Act.” The bill would require that collective bargaining agreements be made public in advance of their adoption, and I had suggested that although the intentions might be noble the law actually might be counterproductive.

I also mentioned that the bill had one other goal. This second new requirement would be to make clear that certain records relating to bargaining would be subject to disclosure under the Right to Know Law. Specifically, the law would clarify that the draft collective bargaining agreement is subject to disclosure once it is advertised as being ready for adoption. More troubling, though, is the requirement that the public employer would need to disclose “any documents that are presented by a public employer or received by a public employer from an employee organization, in the course of collective bargaining.”

Once again, though, this could create more problems than it solves. Bargaining sometimes requires candid and private communication, and that type of communication can be stifled when one party or another hesitates based on the fear that that their work product would or could be viewed later by parties for whom it was not intended.

The bill’s goal – creating accountability to collective bargaining – is noble. At the end of the day, though, local elected officials ARE accountable for the decisions they make with respect to collective bargaining agreements, just as with any other decisions they make involving public money and public trust. If the public disapproves of the way elected officials are handling bargaining, they can replace them with new elected officials.

At the state level, of course, the process is different. State contracts are negotiated by the Governor, the executive, rather that by the legislature. At least one proponent of the bill, the Commonwealth Foundation, correctly notes that the bill would would allow legislative input and oversight that currently is lacking at the state level. A better solution, though, would be to require legislative input by, for example, requiring a legislative ratification of state collective bargaining agreements.

At this point, the bill is still in committee in the state House, but we will keep an eye on it to see what, if any, changes public employers can expect.

Bill Aims to Bring More Transparency to Public Collective Bargaining – But is it Wise?

A series of bills introduced in the Pennsylvania House and Senate this session would bring more transparency to the process of public sector bargaining. Whether this would be a benefit for the taxpayers, as suggested by the bills’ proponents, though, remains to be seen.

Last month Senate Bill 645 passed the Senate and was referred to the House, where the bill sits in the State Government Committee. This bill, known as the “Public Employer Collective Bargaining Transparency Act” would require that all public employers provide public notice of any proposed collective bargaining agreements in advance of, and for thirty days after, the signing of any agreement. Absent the public notice, the agreement would be void.

Currently, Pennsylvania’s Sunshine Law permits public employers to conduct bargaining in executive session, and most bargaining sessions in fact do occur in private. Often, and in fact by design, many times the agreements that result from the bargaining are not made known until after the employer and the employees’ union both approve the deal.

The bill would require the public notice presumably so that the public would be able to offer input into the agreement before it is already approved. Sponsors and supporters of the bill also have complained that the state legislature, which must fund these agreements with the state’s various unions, does not know what will be in those agreements and has no input into the terms that it will be obligated to try to fund.

While the argument has more merit with respect to state union contracts, since the legislature has no advanced input either, the proposed rule might be counterproductive at a local level, where the same problem does not exist. I wrote above that if often is by design that the details of an agreement are kept quiet until the agreement can be approved by the union membership and the governing body of the local government. This is intended to limit the extent to which the union members and supporters can place pressure on the governing body in an effort to influence the governing body’s vote on the agreement. In that sense, providing advanced public notice of a proposed agreement is likely to aid the union more so than the taxpayers.

If the stated goal of the bill is to provide more transparency in an attempt to limit union influence, the means employed to achieve that goal is not well suited to the goal, at least at the local level.

In a future post, I will address the bill’s second major requirement, which likewise may be counterproductive as well. In the meantime, I will continue to watch the progress of this bill and the others like it.

[EDIT: Read Part 2 here]
school bus

PA Supreme Court Affirms Cap on School & Municipal Liability

In an important decision for school districts and municipalities, the Pennsylvania Supreme Court this week upheld a cap on damages claimed by plaintiffs injured by public entities. Here, in the case of Zauflik v. Pennsbury School District, the Court invalidated a jury verdict in excess of $14 million dollars, leaving the plaintiffs with a revised award of just $500,000.

In this tragic case, a student was injured severely when a bus owned by the Pennsbury School District, and operated by a District employee, accelerated onto a sidewalk, hitting 20 students. The plaintiff suffered a crushed pelvis and required the amputation of her leg. There was no question that the District was liable for the injury.

The question in this case, though, involved the Political Subdivision Tort Claims Act and its cap on damages that can be awarded. Generally, governmental entities are immune from liability, but the Act includes some exceptions to that general rule. Even when an exception applies, as it did in this case, the law still says that no damages can be awarded against a local government in excess of $500,000 per incident.

Here, the plaintiffs argued that the cap was unconstitutional and that a $14 million award from the jury should stand. The Court affirmed the constitutionality of this limit on liability, however, leaving the plaintiff with the statutory cap.

This is an important decision for local governmental entities, since paying large verdicts in cases like this would divert taxpayer funds from providing other essential services. Governmental entities should be aware, though, that this Act and its cap on damages apply only to personal injury claims and not other types of disputes, like eminent domain actions, employment related claims and breach of contract disputes for example.

As always, governmental entities should contact legal counsel with any questions about possible liability.

open records

Right to Know Law Does Not Require Agency to Keep Any Records

Last week’s decision by the Pennsylvania Commonwealth Court marks a victory for public agencies that are subject to Pennsylvania’s Right to Know Law (RTKL). In a suit by the Pittsburgh Post-Gazette, which sought certain email records from the Pennsylvania Department of Education (PDE), the Court confirmed that although the RTKL requires that certain records be made public upon request, it does not require that any records actually be kept.

Under the applicable record retention policy, certain records, including emails, are to be disposed of as soon as it is determined that they no longer are of administrative value. According to the internal operating procedures, these types of records include such things as phone messages, routing slips, extra copies or preliminary drafts of final documents, communications relating to scheduling of meetings, etc. According to the policy, if an email is found to be one of these types of records that can be deleted, it will be deleted from the employee’s email inbox on a daily basis, and it then is permanently deleted from the server five days later.

The Post-Gazette sought some of these emails from employees at the PA Department of Education and sued the Governor’s Office of Administration (GOA), which developed the internal operating procedure at issue, along with the PA Department of Education, asking the Court to order that the emails be kept for a period of two years so they could be accessed if requested under the RTKL.

The Court noted that Section 507 the RTKL makes very clear that nothing in that law shall supersede a duly adopted record retention policy. Because the record retention policy here was adopted pursuant to the GOA’s authority to make such policies, and because the PDE employees were acting in compliance with the record retention policy when deleting emails each day, the Court concluded there was no reason to order that PDE keep emails for any length of time.

Although this case deals with emails, the statutory language is not limited to email. Public agencies should evaluate their record retention policies first to make sure that the policies describe how and for how long various records will be kept. Also, agencies should make sure that these policies are being followed and that records are being kept for the correct amount of time – no more and no less.

Court: No First Amendment Protection for Teacher’s Blog

According to a report in the Philadelphia Inquirer, a federal Court has ruled that a Pennsylvania School District did not violate the free speech rights of a teacher when it took adverse action against her for comments made on a personal blog.

Natalie Munroe, a teacher in the Central Bucks School District, maintained a personal blog on which she referred to her students as “frightfully dim,” “utterly loathsome,” and “whiny.”  Although she didn’t mention any students by name and even tried to take steps to write anonymously, the District discovered the posts in 2012 and disciplined her.  She sued the District, claiming that she had a first amendment right to the speech since it was done outside of work.

The federal court disagreed with Ms. Munroe, acknowledging that although public employees do have some free speech protection, the protection is not unlimited.  Although there have only been a handful of cases like this, involving public employee speech online, Courts have addressed free speech issues like this for several decades, making clear that public employers do not violate the Constitutional free speech rights of employees by disciplining them for speech that is not on a matter of public concern.  Here, the Court pointed out that criticizing students online is so disruptive, and of such little value to public discourse, that the District’s action cannot be said to violate any free speech rights.

An appeal was promised by the teacher, but that will be a very uphill battle for her.  As should be intuitive, public employees should be careful about what they post online, while public employers should consult counsel before acting with respect to employee social media activity.